High Court of Jammu & Kashmir Clarifies Law on Deferring Cross-Examination and preparation of Case calendar

Ravinder Kumar & Others vs. UT of J&K

Introduction

In a significant judgment delivered on May 19, 2025, the High Court of Jammu & Kashmir at Jammu, presided over by Hon'ble Mr. Justice Rajesh Sekhri, clarified the scope and procedure for deferring the cross-examination of prosecution witnesses in criminal trials. The case, CRM(M) No. 352/2025, was filed by Ravinder Kumar and others (the petitioners) against the Union Territory of Jammu & Kashmir (the respondent), challenging the order of the Principal Sessions Judge, Jammu, which had declined their request to defer the cross-examination of six key eye-witnesses in a murder trial.

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J & K HC: Under which circumstances the Court can defer cross-examination of set of prosecution witnesses after preparation of Case calendar?

 True it is, that prosecution witnesses are expected to testify in their chief examination on the lines of their statements recorded, during investigation, under Sections 161 or 164 Cr.P.C., and any improvement or deviation by them from said statements, may render their depositions unworthy of credence. However, it is the apprehension of improvisation by the prosecution witnesses in their cross examinations to circumvent the defence strategy which is to be taken into consideration by the Court at the time cross examination of a witness or set of witnesses is sought to be deferred and if that apprehension is well founded, it can hamper the prospects of a fair trial, a basic postulate of criminal jurisprudence. The circumstances narrated by the petitioners, in the present case, justified the exercise of discretion by the Court, in terms of sub section 3 of Section 254 BNSS.{Para 24}

25. If the principle of law expounded by Hon‟ble Supreme Court in Rasheed, is carefully glanced over, it is manifest that, as far as possible, a plea for deferral under Section 254(3) BNSS, must preferably be made before the preparation of the case calendar or at the earliest available opportunity,before the defence strategy would become known to the prosecution. A request for deferral must be premised on sufficient reasons and prejudice is the determinating factor, to be borne in mind.

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

Case: CRM(M) No. 352/2025

 Ravinder Kumar and others  V/s   UT of J&K 

 Coram: HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

Pronounced on: 19.05.2025.

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Supreme Court: Whether a party can say that a document is not proved if he has shown that document in cross- examination of other side witness?

His evidence was that the books were, systematically kept on 'mahajani' system in connection with the business. The witness proved the Khata, the raznamcha and the nakalbahi entries. In cross-examination of Gopi Kishan Saraugi it was suggested that the entry under the date 30 September, 1942 in the roznamcha was not written at the same time. The suggestion was that there was interpolation of the words "deposit karaya" in the roznamcha entry. In cross-examination of Padampat Singhania questions were asked about the rokar, khata, nakalbahi and roznamcha entries. Padampat Singhania said that the entry of Rs. 4,00,000 was not recorded in the daily cash book but was recorded in the roznamcha. He said that credit and debit entries were made in the roznamcha. Padampat Singhania said that the entries were made by Gopi Kishan Jaipuria who was in a dying condition at the time the witness gave evidence.

16. It was suggested to Padampat Singhania that the words "deposit karaya" in the roznamcha entry were not written at the same sitting. Padampat Singhania denied that, Counsel for the appellant contended that in the absence of Gopi Kishan Jaipuria the account books were not proved. This is unacceptable for two reasons. First, the account books were shown in cross-examination of Padampat Singhania and question were asked on the same. It is not open to the appellant to complain of lack of proof of account books when the documents are shown to the witness in cross-examination. 

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2151 of 1966

Decided On: 21.01.1971

Ram Janki Devi and Ors. Vs. Juggilal Kamlapat

Hon'ble Judges/Coram:

A.N. Ray and G.K. Mitter, JJ.

Author: A.N. Ray, J.

Citation: 1971:INSC:35 : 1971 (1) SCC 477, MANU/MH/1001/2025.

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Bombay HC: An admission made during cross-examination of a witness by counsel of one accused does not bind another accused if they are represented by different advocates

  Criminal Trial: Admission in Cross-Examination- In a criminal trial, an admission made during the cross-examination of a witness by the counsel of one accused does not bind another accused if they are represented by different counsels/advocates. Each accused is entitled to their own defense, and admissions made by one counsel cannot be used against another accused who is represented separately.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD.

CRIMINAL APPEAL NO. 38 OF 2022

Manohar s/o Kondiba Waghmare, Vs The State of Maharashtra .

CORAM : R. G. AVACHAT AND NEERAJ P. DHOTE, JJ.

JUDGMENT [Per : Neeraj P. Dhote, J.] : -

DATED : 31st JANUARY, 2025.

Citation: 2025:BHC-AUG:1988-DB.

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Under which circumstances the court will not believe a fact even if ten witnesses say it and all the witnesses may withstand the cross-examination?

13.4 Meanings of term "believes it to exist"

The expression "believes" in the definition of "proof" is a "judicial belief" of the Judge based on logical/rational thinking and power of reason, and the Court is required to give reasons for the belief The reasons are live links between the mind of the decision maker and the belief formed. 

13.5 Nothing can be said to be "proved", however much material there may be available, until the Court believes the fact to exist or considers its existence so probable that a prudent man will act under the supposition that it exists. For example, ten witnesses may say that they saw the sun rising from the West and all the witnesses may withstand the cross-examination, the Court would not believe it to be true being against the law of nature and, therefore, the fact is 'disproved'. In mathematical terms, the entire evidence is multiplied with zero and, therefore, it is not required to be put on judicial scales. Where the Court believes the case of both the parties, their respective case is to be put on judicial scales to apply the test of preponderance.

13.8 The rules of evidence may provide tests, the value of which has been proved by long experience, by which Judges may be satisfied that the quality of the material upon which their judgments are to proceed is not open to certain obvious objections; but they do not profess to enable the Judges to know whether or not a particular witness tells the truth or what inference is to be drawn from a particular fact. The correctness with which this is done must depend upon the natural sagacity, the logical power, and the practical experience of the Judge and not only upon his acquaintance with the law of evidence.

13.9 Cross-examination supplies a test to a certain extent, but those who have seen most of its application will be disposed to trust at least as a proof that a man is not shaken by it, ought to be believed. A cool, steady liar who happens not to be open to contradiction will baffle the most skilful cross-examiner in the absence of accidents, which are not so common in practice as persons who take their notions on the subject from anecdotes or fiction would suppose.

13.12 M. Monir, J. in his commentary Principles and Digest of the Law of Evidence, 13th Edition, opined that no rule of evidence can guide a judge on the fundamental question whether the evidence as to the relevant facts should be believed or not. He observed that the best guide of a judge is to ascertain the truth by his own common sense and experience of human nature. The observations of the author are reproduced hereunder:

"There is in almost every trial the question whether evidence as to a fact should be believed or not, and if believed what is its effect on the main question. Does this elaborately framed Code of the Law of Evidence give any assistance to the Judge on this question? The answer, of course, must be in the negative. First, however carefully and with whatever detail the rules of relevancy may be framed, no rule of evidence can guide the Judge on the fundamental question whether evidence as to a relevant fact should be believed or not.

IN THE HIGH COURT OF DELHI

Mac. App. 1114/2017

Decided On: 28.09.2018

Suman Devi and Ors. Vs. Mahesh Arora and Ors.

Hon'ble Judges/Coram:

J.R. Midha, J.

Citation: MANU/DE/3807/2018.

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Supreme Court: Courts Cannot Prepone Date Of Hearing Without Giving Notice To Other Party

  When the defendants had appeared in the suit, the act of preponing the date without notice to them or their advocate was completely illegal and contrary to elementary principles of natural justice. Therefore, it follows that the order striking out the defendants' defence is completely illegal, and the said order deserves to be set aside. {Para 5}

 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2394/2023

RANJIT SINGH & ANR. Vs  STATE OF UTTARAKHAND & ORS. 

Author: ABHAY S OKA, J.

Citation: 2024 INSC 724.

Dated: SEPTEMBER 12, 2024.

Read full Judgment here: Click here.

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Supreme court: Defendant Can Cross-Examine Plaintiff Even If Suit Is Proceeding Ex-Parte Against Him & Written Statement Isn't Filed

On 1st July, 2002, the defendants applied for setting aside theorder dated 3rd May, 2002 by which their defence was struck out. The application proceeds on the allegation that on 3rd May, 2002, the Court proceeded to strike out the defendants' defence without giving them an opportunity of being heard and the hearing was conducted ex parte. Very interestingly, a reply was filed to the said application by the plaintiffs in which a stand has been taken that as the suit was directed to proceed ex parte, there was no occasion to give an intimation to the defendants or their counsel that the application will be taken up on 3rd May, 2002. Therefore, it is an accepted position that the application for striking out the defence of the defendants was taken up on the cause list on 3rd May 2002 without issuing notice to the defendants, though on 22nd April, 2002, the next date was already fixed as 30th May 2002.

The application for setting aside the order dated 3rd May, 2002 was rejected. At this stage, we must clarify the legal position. Even if a defendant does not file a written statement and the suit isordered to proceed ex parte against him, the limited defence

available to the defendant is not foreclosed. A defendant can

always cross-examine the witnesses examined by the plaintiff to

prove the falsity of the plaintiff's case. A defendant can always

urge, based on the plaint and the evidence of the plaintiff, that

the suit was barred by a statute such as the law of limitation.

Therefore, notwithstanding an order passed earlier to proceed ex

parte, while deciding an application for striking out the defence,

it was the duty of the Court to give an opportunity of being heard to the defendants. However, that was not done. As the suit was fixed on 30th May, 2002, the defendants were entitled to a notice that the suit would be taken up on an earlier date for hearing the application for striking out the defence. When the defendants had appeared in the suit, the act of preponing the date without notice to them or their advocate was completely illegal and contrary to elementary principles of natural justice. Therefore, it follows that the order striking out the defendants' defence is completely illegal, and the said order deserves to be set aside. {Para 5}

 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2394/2023

RANJIT SINGH & ANR. Vs  STATE OF UTTARAKHAND & ORS. 

Author: ABHAY S OKA, J.

Citation: 2024 INSC 724.

Dated: SEPTEMBER 12, 2024.

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Landmark Supreme Court Judgment on appreciation of evidence in the case of Motor accident claim petition

 In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.

(emphasis supplied) {Para 15}

19. The failure of the Respondents to cross examine the solitary eyewitness or confront him with their version, despite adequate opportunity, must lead to an inference of tacit admission on their part. They did not even suggest the witness that he was siding with the claimants. The High Court has failed to appreciate the legal effect of this absence of cross-examination of a crucial witness.

21. Relying upon Kartar Singh (supra), in a MACT case this Court in Sunita v. Rajasthan State Road Transport Corporation considered the effect of non-examination of the pillion rider as a witness in a claim petition filed by the deceased of the motorcyclist and held as follows:

30. Clearly, the evidence given by Bhagchand withstood the Respondents' scrutiny and the Respondents were unable to shake his evidence. In turn, the High Court has failed to take note of the absence of cross examination of this witness by the Respondents, leave alone the Tribunal's finding on the same, and instead, deliberated on the reliability of Bhagchand's (A.D. 2) evidence from the viewpoint of him not being named in the list of eye witnesses in the criminal proceedings, without even mentioning as to why such absence from the list is fatal to the case of the Appellants. This approach of the High Court is mystifying, especially in light of this Court's observation [as set out in Parmeshwari (supra) and reiterated in Mangla Ram (supra)] that the strict principles of proof in a criminal case will not be applicable in a claim for compensation under the Act and further, that the standard to be followed in such claims is one of preponderance of probability rather than one of proof beyond reasonable doubt. There is nothing in the Act to preclude citing of a witness in motor accident claim who has not been named in the list of witnesses in the criminal case. What is essential is that the opposite party should get a fair opportunity to cross examine the concerned witness. Once that is done, it will not be open to them to complain about any prejudice caused to them. If there was any doubt to be cast on the veracity of the witness, the same should have come out in cross examination, for which opportunity was granted to the Respondents by the Tribunal.

22. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true. 

23. The observation of the High Court that the author of the FIR (as per its judgment, the owner-cum-driver) had not been examined as a witness, and hence adverse inference ought to be drawn against the Appellant-claimants, is wholly misconceived and misdirected. Not only is the owner-cum-driver not the author of the FIR, but instead he is one of the contesting Respondents in the Claim Petition who, along with insurance company, is an interested party with a pecuniary stake in the result of the case. If the owner-cum-driver of the car were setting up a defence plea that the accident was a result of not his but the truck driver's carelessness or rashness, then the onus was on him to step into the witness box and explain as to how the accident had taken place. The fact that Sanjeev Kapoor chose not to depose in support of what he has pleaded in his written statement, further suggests that he was himself at fault. The High Court, therefore, ought not to have shifted the burden of proof.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 4010-4011 of 2020 

Decided On: 08.12.2020

Anita Sharma and Ors. Vs. The New India Assurance Co. Ltd. and Ors.

Hon'ble Judges/Coram:

Surya Kant and Aniruddha Bose, JJ.

Author: Surya Kant, J.

Citation: MANU/SC/0928/2020,(2021) 1 SCC 171.

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What is basic concept of leading questions as per S 146 of Bharatiya Sakshya Adhiniyam? Explain this concept with examples

 The concept of leading questions is addressed in S 146 of Bharatiya Sakshya Adhiniyam. Here’s a detailed explanation of the concept, along with examples:

Definition and Legal Basis

Leading Question:

• A leading question is one that suggests the answer desired by the questioner, typically by putting words into the mouth of the witness.
• Section 146(1) of BSA defines leading questions as: "Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question."

• Leading questions are generally not allowed during the examination-in-chief (the initial questioning of a witness by the party who called the witness) or re-examination unless they relate to matters which are introductory or undisputed, or which have already been sufficiently proved.

• Leading questions are allowed during cross-examination (questioning of a witness by the opposing party).

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Supreme court : The court should not accept defence taken by accused in his statement U/S 313 of CRPC if he has not cross examined prosecutrix in that respect

We have carefully perused the cross-examination of the prosecutrix. In the cross-examination, the case put to her was that she had voluntarily accompanied the Accused Vijay. There was no suggestion given by the Accused that the sexual intercourse with the prosecutrix was with her consent. The evidence of the prosecutrix in her examination-in-chief that the Accused committed sexual intercourse with her has not been shaken. The case of Accused Vijay made out in his statement Under Section 313 of Code of Criminal Procedure was that he was in a relationship with the victim for one year and was paying money to the victim for maintaining a sexual relationship. This case has not been put to the prosecutrix. Even the case made out by Accused Sunil and Ravi that they were keeping a physical relationship with the prosecutrix by paying money has not been put to the prosecutrix.

{Para 10}

11. If the relationship between Accused Vijay and the prosecutrix was really continuing for one year, there was no reason for him to take the prosecutrix to a remote place near a Nullah and have sexual intercourse near a boulder. The same is the case with the other two Accused. The manner in which the prosecutrix was taken initially near the Nullah and after that to another place establishes the case of the prosecutrix of forcible sexual intercourse. Few insignificant contradictions have been brought on record in the cross-examination of the prosecutrix. However, the version of the prosecutrix about the acts of forcible sexual intercourse by the Accused has been hardly tested in the cross-examination.

12. In this view of the matter, the High Court's conclusion was the only possible conclusion based on the evidence on record. Therefore, we find no merit in the appeal preferred by the Accused Vijay.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2567 of 2024 and 2568 of 2024

Decided On: 15.05.2024

State of Himachal Pradesh Vs. Raghubir Singh and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Ujjal Bhuyan, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation:  MANU/SC/0430/2024.

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What procedure the court should follow if defence is seeking to recall a prosecution witness on the ground that he has given inconsistent statement before another forum?

 In our opinion, the procedure adopted by the Sessions Judge was not strictly in accordance with law. Once the witness was examined in-chief and cross- examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. A witness could be confronted only with a previous statement made by him. At the time of examination of PW-2 Mokam Singh on 6.2.1991, there was no such previous statement and the defence counsel did not confront him with any statement alleged to have been made previously. This witness must have given some other version before the Juvenile Court for extraneous reasons and he should not have been given a further opportunity at a later stage to completely efface the evidence already given by him under oath. The courts have to follow the procedures strictly and cannot allow a witness to escape the legal action for giving false evidence before the court on mere explanation that he had given it under the pressure of the police or some other reason. Whenever the witness speaks falsehood in the court, and it is proved satisfactorily, the court should take a serious action against such witnesses. {Para 6}

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. ... of 2008 

Decided On: 13.10.2008

Hanuman Ram Vs. The State of Rajasthan and Ors.

Hon'ble Judges/Coram:

Dr. Arijit Pasayat and J.M. Panchal, JJ.

Author: Arijit Pasayat, J.

Citation: 2009 (64) ACC 895 (SC),MANU/SC/8107/2008.

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Sikkim HC: The Pocso court should not allow questions in cross examination relating to character of prosecutrix

 What is preposterous about the cross-examination of P.Ws 7 and 8 is that the Court has allowed such a question to be asked to the witnesses, of which the response is recorded as, “It is true that I am not well acquainted with the character of the victim.” The Court has to bear in mind that the victim is a mere child of 11 years and there is no question of analysing her character, she being an innocent victim of a depraved and horrendous crime by the Appellant, even otherwise, it is now settled law that the character assassination of a victim finds no place in offences of rape. Section 33 of the POCSO Act specifically lays down that the questions to the victim shall be put through the Court which shall not permit aggressive questioning or character assassination of the child. Courts dealing with such matter are required to be sensitive and should prevent further traumatisation of the victim who have already suffered emotional upheavals and physical torment. {Para 11}

 In the High Court of Sikkim at Gangtok

(Before Meenakshi Madan Rai, J.)

Nar Bahadur Subba. Vs State of Sikkim 

Crl.A. No. 32 of 2015

Decided on October 7, 2016.

Citation: 2016 SCC OnLine Sikk 185 : 2017 Cri LJ (NOC 288) 86.

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Supreme Court: Recording examination in chief of witnesses in absence of advocate of accused without recording their cross examination is illegal

In our view, the Trial Court ought not to have recorded the evidence in this fashion. Before recording the examination-inchief of the first prosecution witness, after finding that the appellants-accused had not engaged any Advocate, the Trial Court ought to have provided a legal aid Advocate to the appellants accused so that the evidence of the prosecution witnesses could have been recorded in the presence of the Advocate representing the appellants-accused. The order sheet enclosed with the report does not record that the appellants declined to accept the services of a legal aid lawyer. {Para 5}

6. When the examination-in-chief of a material prosecution

witness is being recorded, the presence of the Advocate for the

accused is required. He has a right to object to a leading or

irrelevant question being asked to the witness. If the trial is

conducted in such a manner, an argument of prejudice will be

available to the accused. This is a warrant case. In a warrant

case, in view of the proviso to the sub-section (3) of Section 242

of the Code of Criminal Procedure, 1973 (for short, “the Cr.PC”), the learned Magistrate, by recording reasons, can permit cross examination of a witness to be postponed till a particular witness or witnesses are examined. However, in the present case, no such order was passed by the learned Magistrate. The normal rule is that witnesses shall be examined in the order laid down in Section 138 of the Indian Evidence Act, 1872. Sub-section (3) of Section 242 of the Cr.PC is the exception to the rule.

7. Therefore, recording only the examination-in-chief of 12 prosecution witnesses without recording cross-examination is contrary to the law. 

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S).1664-1665 OF 2024

EKENE GODWIN & ANR.  Vs STATE OF TAMIL NADU 

Author: ABHAY S. OKA, J.

Dated: MARCH 18, 2024.

Citation: 2024 INSC 229.

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Bombay HC: The court should not put to accused U/S 313 of CRPC, material appearing in the cross-examination of prosecution witnesses taken by Advocate for accused

 On going through the questions, particularly Q. No. 38 and further questions till Q. No. 45, I find that the material which has appeared during the course of cross-examination of the concerned witnesses taken on behalf of the accused, had been put to the accused so as to elicit his appropriate response to the same. This material, it can be seen, has been considered as constituting incriminating circumstances against the accused. It is well settled law that only those circumstances which incriminate the accused can be put to the accused so that he is made aware of the same and is able to give appropriate response. It is the law laid down in Tara Singh's case, supra. The question in this case would be, whether the material appearing in the cross-examination of the prosecution witnesses taken by the learned counsel for the accused could be considered as something going against the accused and the answer, as rightly submitted by the learned counsel for the applicant, would be a firm “No”. The reason being that such material though it goes against the accused, is ultimately accepted by him to be so and, therefore, would be out of bound of Section 313 of Criminal Procedure Code. It would be not covered by the scope of this section and, therefore, there is no need for the Court to bring to the notice of the accused once again such a material. If the accused consciously puts some questions which yield answers revealing incriminating circumstances, same would be in the nature of admitted facts from which the accused cannot keep distance. They may even be unexpected by the accused, being the result of the cross-examination having gone haywire. Yet, he cannot disown them they being of his own making. Such material cannot be said as incriminating from the lens of Section 313 Criminal Procedure Code. Purpose of this section is to enable the accused to explain personally the circumstances appearing in evidence against him and not to resile from his own admissions. The objection, therefore, taken in this regard on behalf of the accused/petitioner ought to have been allowed. But, the learned Judge ignoring the well settled principles of law has rejected the same wrongly by going against the spirit of Section 313 of Criminal Procedure Code. The impugned order deserves to be quashed and set aside.

{Para 5}

6. In the result, writ petition is allowed. The objection taken by the learned counsel for the petitioner/accused in respect of Question Nos. 38 to 45 is upheld and these questions stand deleted from the statement of the petitioner/accused recorded under Section 313 of Criminal Procedure Code. The trial shall proceed in accordance with law.

 In the High Court of Bombay

(Before S.B. Shukre, J.)

Urvashi Vs State of Maharashtra 

Criminal Writ Petition No. 166 of 2016

Decided on June 20, 2016

Citation: 2016 SCC OnLine Bom 5379 : (2016) 3 AIR Bom R (Cri) (NOC 47) 15 : (2016) 3 Bom CR (Cri) 422

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Whether evidence of a witness is liable to be discarded if he dies before his cross examination?

Wigmore has laid down the following principle in dealing with the statement of a witness who dies before his cross-examination :-

" BUT, where the death or illness prevents cross-examination under such circumstances that no responsibility of any sort can be attributed to either the witness or his party, it seems a harsh measure to strike out all that has been obtained on the direct examination. Principle requires in strictness nothing less. But the true solution would be to avoid any inflexible rule, and to leave it to the trial Judge, to admit the direct examination so far as the loss of cross-examination can be shown to him to be not in that instance a. material loss. Courts differ in their treatment of this difficult situation; except that, by general concession, a cross-examination begun, but unfinished, suffices if its purposes have been substantially accomplished." (see page 765 of Woodroffe and Ameer Ali's Law of Evidence, 11th Edition.) {Para 11}

(12) I have given the matter my consideration and am of the view that the statement of a witness in examination-in-chief, which was admissible at the time it was recorded, cannot become inadmissible by reason of the subsequent death of the witness before cross-examination. The absence of cross-examination would undoubtedly affect the value and weight to be attached to the statement of the witness, but it would not render the statement inadmissible or result in its effacement. So far as the question is concerned as to what weight should be attached to such statement made in examination-in-chief the Court has to keep in view the facts and circumstances of each individual case. Some of the factors which may be borne in mind are the nature of the testimony, its probative value, the status of the witness, his relationship or connection with the parties to the case, a likely animus which may colour his statement and any other factor touching the credibility of the witness which may emerge on the record. Regard must also be had to the fact that the witness has not been subjected to cross-examination. The Court should see whether there are indications on the record that as a result of cross-examination his testimony was likely to be seriously shaken or his good faith or credit to be successfully impeached. The Court may also adopt a rule not to act upon such testimony unless it is materially corroborated or is supported by the surrounding circumstances. If after applying that rule of caution, the Court decides to rely upon the statement of a witness who was examined in chief, but who died before cross-examination, the decision of the Court in this respect would not suffer from any infirmity.

 IN THE HIGH COURT OF DELHI

Regular Second Appeal No. 28 of 1962

Decided On: 08.07.1969

Krishan Dayal Vs. Chandu Ram

Hon'ble Judges/Coram:

H.R. Khanna, J.

Citation:  MANU/DE/0078/1969.

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Whether plaintiff or a defendant, while deposing as a witness, can be confronted with documents in cross- examination completely divorced from or foreign to the pleadings made?

 The differentiation between the party to a suit and a witness, as is made clear by our earlier discussion, is not something that gels with the law. As has been hitherto observed, the term witness does not exclude the party to the suit i.e., the Plaintiff or the Defendant, themselves appearing before the court to enter evidence. As far as the non-production of documents amounting to fraud, it may be true that the non-production of documents on which the parties place reliance, may hinder the progression of the suit- and in a given case, perhaps may amount to fraud- but we do not comment on those possibilities, if any. However, the intentional withholding of a document, in these two situations- is completely different. One is the withholding of a document upon which the case depends, or is essential for the lis to be appropriately decided - and the other is solely for the purpose of effective cross-examination. The two cannot be held to be at the same pedestal, the latter most certainly not amounting to fraud.

{Para 20}

30. A reading of the judgments above would imply that substance is what the courts need to look into, and therefore, in reference to the production of documents, in the considered view of this Court, so long as the document is produced for the limited purpose of effective cross-examination or to jog the memory of the witness at the stand is not completely divorced from or foreign to the pleadings made, the same cannot be said to fly in the face of this established proposition.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8146 of 2023 

Decided On: 14.12.2023

Mohammed Abdul Wahid Vs. Nilofer and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and Sanjay Karol, JJ.

Author: Sanjay Karol, J.

Citation: MANU/SC/1342/2023.

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Whether the court should draw adverse inference against wife if she refuses to undergo DNA test in cross examination?

Thus, as on today, in this petition also though vehemently arguments are advanced saying that the petitioner husband is ready go for DNA test, still no separate application is filed for DNA test. Mere submission that question was asked in cross-examination to wife that whether she is ready to go for DNA test, where she has answered that she is not ready itself would not be sufficient to draw adverse inference against the wife. Now, the only question remains whether at this stage DNA test can be ordered merely for asking. His entire argument is that the respondent No. 2 is not his biological daughter cannot be now accepted, firstly, there is no separate application filed by him neither in the Trial Court, nor before the Revisional Court; secondly, no case is made out by the petitioner-husband to direct DNA test. Both the Courts below have rightly observed that no case is made out by the husband to show that for the period of 280 days before the delivery of child, there was no access to him with his wife respondent No. 1. {Para 18}

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Writ Petition No. 271 of 2017

Decided On: 07.01.2023

Namdeo Vs. Seema and Ors.

Hon'ble Judges/Coram:

Kishore C. Sant, J.

Citation:  MANU/MH/0049/2023.

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Notes on leading questions as per provisions of Indian Evidence Act

S. 141 of Indian Evidence Act:- Leading questions.—Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question.

In simpler terms, a leading question is one that prompts or guides the witness towards a particular response.

 S. 142 of Indian Evidence Act: When they must not be asked.—Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court.

The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.

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Whether accused can request to cross-examine approver after pardon granted to him is recalled?

 Learned Judge however, on the basis of decision in the case of Abu Salem (supra) held that the choice is with the approver, whether to

continue or not to continue as an approver. Learned Judge has

observed that this position is supported by decision in the case of

Abu Salem (supra). In my view, the learned Additional Sessions

Judge has not properly considered the facts in the case of Abu

Salem. In the case of Abu Salem, the co-accused Riyaz Siddique

was an approver. At the time of his examination-in-chief, the

learned Prosecutor found that he was not obeying the conditions of

pardon and not disclosing the true and correct facts related to the

crime. Learned Special Prosecutor therefore issued a certificate in

terms of Section 308 of the Cr.P.C. and stated that the approver has

not complied with the conditions on which the pardon was tendered

to him and prayed that the pardon be withdrawn and he be tried

separately. The pardon was therefore withdrawn/fortified. Learned

Special TADA Court Judge ordered him to be tried separately.

19 In the case of Abu Salem (supra) after withdrawing the

pardon the Advocate for the accused Abu Salem made a request to

the Court to allow him to cross examine the approver. Learned

Judge of the TADA Court granted this request and allowed the

Advocate to cross examine the approver after withdrawing his

pardon. The matter was carried to the Supreme Court. The

Hon’ble Supreme Court after considering the facts of the case and the law held that after withdrawal of the pardon on certificate of public prosecutor such person is liable to be tried as an accused. Such person cannot be further examined by the prosecution. He ceases to be the approver and the witness for the prosecutor. On withdrawal of the pardon, he is relegated to his original position of an accused. He has to be therefore tried separately for the original offences for which he was prosecuted and for the offence of giving false evidence.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

CRIMINAL WRIT PETITION NO. 472 OF 20 23

State of Maharashtra Vs  Madhuri Badrinarayan Gote,

CORAM : G. A. SANAP, J.

DATE : 11/08/2023.

Read full Judgment here: Click here

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Should the court rely on the defence taken by the defendant if he fails to give his evidence before the court and gets cross-examined?

Having not entered into the witness box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of principles contained in illustration (g) of Section 114 of the Evidence Act.

16. As early as in 1927, the Privy Council in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. MANU/PR/0049/1927, took note of a practice prevalent in those days of not examining the parties as a witness in the case and leaving it to the other party to call that party so that the other party may be treated as the witness of the first party. Their Lordships of the Privy Council observed as under:

Notice has frequently been taken by this Board of this style of procedure. It sometimes takes the form of a manoeuvre under which counsel does not call his own client, who is an essential witness, but endeavours to force the other party to call him, and so suffer the discomfiture of having him treated as his, the other party's, own witness.

This is thought to be clever, but it is a bad and degrading practice. Lord Atkinson dealt with the subject in Lal Kunwar v. Chiranji Lal (1), calling it "a vicious practice, unworthy of a high-toned or reputable system of advocacy."

17. The true object to be achieved by a Court of justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected in all its particulars to cross-examination.

19. This decision was also relied upon by the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh MANU/MH/0063/1930 : (1930)32BOMLR924 , which observed as under:

It is the bounden duty of a party personally knowing the facts and circumstances, to give evidence on his own behalf and to submit to cross-examination and his non-appearance as a witness would be the strongest possible circumstance which will go to discredit the truth of his case.

21. The Madhya Pradesh High Court also relied upon the following observation of the Calcutta High Court in Pranballav Saha and Anr. v. Smt. Tulsibala Dassi and Anr. MANU/WB/0183/1958 : AIR1958Cal713 :

The very fact that the defendant neither came to the box herself nor called any witness to contradict evidence given on oath against her shows that these facts cannot be denied. What was prima facie against her became conclusive proof by her failure to deny.

The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. MANU/UP/0007/1971 : AIR1971All29 , held that :

the explanation of any admission or conduct on the part of a party must, if the party is alive and capable of giving evidence, come from him and the court would not imagine an explanation which a party himself has not chosen to give.

 IN THE SUPREME COURT OF INDIA

C.A. No. 1417 of 1982

Decided On: 16.03.1999

Iswar Bhai C. Patel  Vs.  Harihar Behera and Ors.

Hon'ble Judges/Coram:

Saiyed Saghir Ahmad and M.B. Shah, JJ.

Author: Saiyed Saghir Ahmad, J.

Citation: MANU/SC/0173/1999

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